Should unions have the right to collect dues from non-members? At least two Senate Democrats want the Supreme Court to reject a new effort to overturn the 1977 Abood ruling that left their party’s revenue stream intact. Sheldon Whitehouse and Richard Blumenthal filed an amicus brief in Janus v AFSCME that warns the justices that their standing as a non-political entity will get further eroded unless they stick to stare decisis:
“If stare decisis means anything, it must mean that a precedent should not be overturned simply because a differently composed court emerges,” the senators wrote. “Decision-making begins to look like prize-taking when precedents are reversed as Court majorities shift.” …
The background of the case means that the court needs to be vigilant of its apolitical role, Whitehouse and Blumenthal wrote.
“Otherwise, the ‘intelligent man’ will reach only one conclusion: that the Court is being asked to reach a political decision because the interests involved in that campaign think — and have telegraphed and telegraphed and telegraphed — that, based on this Court’s changed membership, a 5-4 victory awaits them,” the senators’ brief states.
The top court will hear oral arguments in Janus today, and it’s a panel that seems primed for a 5-4 decision in either direction:
This is the second time in two years the justices have looked at dismantling what union leaders call a crucial income source, a move that could hamper the labor movement’s power at work and in elections. A month after Antonin Scalia’s sudden death in 2016, the court reviewed a similar complaint from a California public teacher and reached a 4-4 split decision and leaving the status quo.
This time around, with President Trump’s appointment of Justice Neil M. Gorsuch, the court appears more likely to side with Mark Janus, a child-support specialist for the state of Illinois, who asserts that mandatory union fees infringe upon his freedom of speech and association.
The decision would overturn state laws mandating that government workers must pay “agency fees,” which would give some 5 million workers the choice to opt out.
It’s not just a crucial income source for the unions. That’s why Whitehouse and Blumenthal filed an amicus brief that’s so overtly political. The “agency fees” that they’re defending aren’t just funding the collective bargaining efforts by which AFSCME argues that Janus directly benefits. Those fees generate tens of millions of dollars for political action, money that flows much more directly into Democratic coffers than it did in 1977 when the earlier court decided Abood.
However, that case was settled by a unanimous court that largely couldn’t agree on the terms of that decision, one that was built on partial concurrences and partial repudiations of stare decisis itself. At the end of the mess of partial concurrences, the court basically agreed that employees in closed public-sector shops had to fund the collective bargaining and grievance adjustment processes of the unions, but not anything related to politics. If that’s the actual reality of public-sector unions such as AFSCME, SEIU, and others, however, why would Democrats care about agency fees at all? What purpose would Whitehouse and Blumenthal have in filing an insulting amicus brief with an argument that amounts to a threat to politicize an upcoming decision?
The implication is rather obvious. “Agency fees” go to political action, not just to exercising collective bargaining. The employees know it and are tired of funding those activities. If the public-employee unions only focused on services to employees, Janus would never have filed suit — and more than half of Wisconsin’s PEU members wouldn’t have bolted after the passage of Act 10 in 2011.
The principle of stare decisis is important for reliable jurisprudence, but it’s not sacrosanct. Brown v Board of Education famously overturned the terrible Plessy v Ferguson decision, for instance, and there are a number of other such reversals in the court’s history. If the Supreme Court reverses Abood this term, PEUs will have to start making themselves attractive to potential members rather than just forcing them to pay to keep their jobs. If PEUs want to remain attractive to their potential members, they’ll have to offer real value for the price, which means ending the extortive fees they charge in order to support the Democrats and their progressive political agenda. And that’s what Democrats fear most.
Via Instapundit, the Competitive Enterprise Institute has a quick primer on the basic fairness argument, but would that ’twere so simple, to quote Hail Caesar’s funniest scene. For the record, I put the seat down for my wife because I’ve been married for 24 years and I’d like to make it to 25, but YMMV.